Azad Tiwari alias Avnish Tiwari and Others vs State of U.P. and Another

Vijay Kumar Verma, J.—By means of this application u/s 482 of the Code of Criminal Procedure (in short ''the Cr. P.C.''), prayer has been made to set aside the summoning order dated 10.11.2008, passed by the Judicial Magistrate 1st, Varanasi and to quash the complaint in Case No. 589 of 2008, Ramashanker v. Chandra Mohan Tiwari and others, under Sections 323, 452, 504 and 506, I.P.C.

Shorn of unnecessary details, the facts leading to the filing of this application, in brief, are that O. P. No. 2 Ramashanker Tiwari moved an application u/s 156(3), Cr. P.C. in the court of Judicial Magistrate 1st, Varanasi, impleading the applicants as accused. That application was treated as complaint by the court below and Case No. 589 of 2008 was registered. The allegations made in the application are that due to the dispute of rasta, the accused Chandra Mohan Tiwari, Azad Tiwari, Ashish Tiwari, Chandrashekhar Tiwari, Vikash Tiwari, Smt. Shakuntala Devi and Smt. Nagina Devi having lathi-danda in their hands came on the door of complainant on 8.2.2008 at about 4.00 p.m. and hurled filthy abuses. When the complainant asked the accused persons not to abuse him, they rushed towards the complainant with a view to cause his death. Due to fear, the complainant in order to save his life entered into his house. The accused persons also entered into the house of the complainant and began to cause marpeet with him by means of fists, kicks and lathi-danda. On hearing the noise of complainant, Uma Shankar Tiwari, Ram Giri and village people came there, who saw the incident and saved the complainant from the accused persons. Thereafter, the accused persons went away giving threatening to kill the complainant. It is also alleged in the complaint that the complainant went to police chauki Babatpur, but his report was not lodged and he was asked to get him medically examined, due to which after medical examination, the complainant sent a report to the S.S.P., Varanasi. The complainant examined himself u/s 200, Cr. P.C. In the inquiry u/s 202, Cr. P.C. two witnesses, namely, Uma Shankar Tiwari and Ram Giri were examined and injury report was also filed. On the basis of the evidence led by the complainant, the court below summoned the applicants to face the trial under Sections 323, 452, 504 and 506, I.P.C. vide order dated 10.11.2008. The impugned summoning order as well as entire proceedings of complaint pursuant to that order have been sought to be quashed by the applicants in this application u/s 482, Cr. P.C.

I have heard Sri U. C. Mishra, advocate, appearing for the applicants, learned A.G.A. for the State at length at the admission stage and perused the entire material on record carefully.

It was vehemently contended by the learned Counsel for the applicants that as a counterblast to the F.I.R. lodged by the applicant No. 6 Chandra Mohan Tiwari against the complainant Ramashanker Tiwari and his brother Sadanand Tiwari, false application u/s 156(3), Cr. P.C. was moved by the complainant with a view to cause harassment to the applicants and hence, the impugned summoning order as well as entire proceedings of complaint case are liable to be quashed by this Court in its inherent jurisdiction u/s 482, Cr. P.C. as continuance of the proceedings of the case would be an abuse of the process of law.

It was further submitted by the learned Counsel for the applicants that after procuring false medical report, the complainant filed entirely false application u/s 156(3), Cr. P.C. after three days of the alleged incident and hence, on this ground also the complaint is liable to be quashed after setting aside the impugned summoning order.

Having heard the learned Counsel for the applicants and A.G.A. and after carefully going through the material on record, in my opinion, the impugned summoning order and complaint cannot be quashed, because on the basis of the statements of the complainant and witnesses Uma Shankar Tiwari and Ram Giri recorded under Sections 200 and 202, Cr. P.C. there is sufficient ground to proceed against the applicants. The statements of the complainant and witnesses find corroboration from the medical report. It is settled law that at the stage of passing order u/s 204, Cr. P.C. the Court is not required to be satisfied that the evidence led by the complainant under Sections 200 and 202, Cr. P.C. is sufficient to base conviction and at this stage it is only to be seen that there is sufficient ground to proceed against the persons who have been arrayed as accused in the complaint. Therefore, having regard to the evidence produced by the complainant in present case, the learned Magistrate did not commit any illegality in passing the impugned summoning order.

It is a settled legal position that at the stage of passing order u/s 203 or 204, Cr. P.C. only a prima facie case has to be seen and not whether the evidence as adduced is to result in conviction of the accused persons. In the case of Nirmaljit Singh Hoon v. State of West Bengal and Anr. (X) 1973 ACC 181 (SC), while considering the scheme of Sections 200 and 203, Cr. P.C. it has been held by the Hon''ble Apex Court that Section 203, Cr. P.C. does not say that a regular trial for adjudging the truth or otherwise of the accusations made against the accused should take place at that stage. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials, there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint.

In the case of Chandra Deo Singh Vs. Prokash Chandra Bose and Another, the Hon''ble Apex Court held that at the stage of enquiry u/s 202, Cr. P.C. the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction. Again in the case of Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others (XII) 1976 ACC 225 (SC), while considering the scope of enquiry u/s 202, Cr. P.C., the Hon''ble Apex Court has held that it is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (a) on the basis of the materials placed by the complainant before the Court ; (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out ; (c) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In that case, it has been held by way of illustration that the order of Magistrate issuing process can be quashed where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused.

In the case of S.W. Palanitkar and Ors. v. State of Bihar and Anr. (LXIV) 2002 ACC 168: 2002 (1) ACR 219, the Hon''ble Apex Court has held that at the stage of passing order u/s 203, Cr. P.C. searching sufficient ground to convict is not necessary.

The Hon''ble Apex Court has considered the matter of exercising inherent power for quashing the F.I.R. or complaint in State of Andhra Pradesh Vs. Bajjoori Kanthaiah and Another, The following observations made in para 7 of the report at page 673 are worth mentioning:

When exercising jurisdiction u/s 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process. Lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.

The following observations made by the Hon''ble Apex Court in State of A. P. v. Bajjoori Kanthaiah (supra) in para 8 are worth mentioning:

It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers u/s 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding.

Keeping in view the legal position stated hereinabove, interference by this Court in the impugned summoning order is not warranted.

Although prior to filing the complaint by O. P. No. 2 against the applicants, an F.I.R. was lodged against O. P. No. 2 and his brother by the applicant No. 6, Chandra Mohan Tiwari and charge-sheet has been submitted after investigation in that case against O. P. No. 2 and his brother Sada Nand Tiwari, but on this ground also the complaint and impugned summoning order in present case cannot be quashed on the ground that the complaint has been filed as counterblast to the F.I.R. lodged by applicant No. 6 against the complainant and his brother. Although copy of the F.I.R. lodged by the applicant No. 6 against the complainant and his brother has not been filed, but copy of the F.I.R. was shown to me by the counsel for the applicants at the time of arguments. Time of the incident mentioned in that F.I.R. is 4.00 p.m. on 8.2.2008. The same time of the incident has been shown in present complaint. It appears that both cases are cross-cases. Annexure-5 is the medical report of complainant Ramashankar Tiwari. He has sustained as many as four injuries alongwith complaint of pain on lower back (left side). Injuries No. 1, 2 and 3 are contusions, whereas injury No. 4 is scabbed abrasion with contusion. From the statement of the complainant and witnesses this fact is borne out that all the applicants-accused after forming an unlawful assembly entered into the house of complainant and caused marpeet with him by fists, kicks and lathi danda. It is settled law that overt act by all the members of unlawful assembly is not essential to attract Section 149, I.P.C. Therefore, in present case also, the complaint cannot be quashed merely because two women and one child have been made accused, because from the evidence on record it is prima facie established that they were also members of unlawful assembly and had participated in the incident. From copy of High School marksheet (Annexure-10), this fact is borne out that age of the applicant No. 2, Ashish Tiwari alias Satya Prakash Tiwari at the time of incident was below 18 years and hence, he was juvenile at that time, but on this ground also the complaint cannot be quashed by this Court in its inherent jurisdiction u/s 482, Cr. P.C. The applicant Satya Prakash Tiwari may surrender before Juvenile Justice Board and his trial may be made by the Board. Although injuries were caused to Smt. Shakuntala Devi and Smt. Nagina Devi, as is evident from their injury reports (Annexure-8) and it is also true that fracture of nasal bone was shown in the injury of Smt. Shakuntala, but on this ground also, the complaint cannot be quashed, because being injured, the presence of these two women at the time of incident cannot be doubted. Therefore, having regard to all these facts, this Court in its inherent jurisdiction u/s 482, Cr. P.C. would not be justified to quash the complaint in present case merely on the ground that the complaint has been filed as counterblast to the F.I.R. lodged earlier by the applicant Chandra Mohan Tiwari against the complainant and his brother. In cross-cases, the trial of the accused persons from both side is not barred.

Before parting with this order, I would like to add that whatever observations have been made by me hereinabove would not affect the case on merit and trial court is free to take its own view on all the issues involved in the case.

For the reasons mentioned hereinabove, the application u/s 482, Cr. P.C. is hereby rejected.

However, the courts below are directed to dispose of the bail applications of the applicants expeditiously, if possible on the same day, keeping in view of the guidelines/law laid down in Smt. Amrawati and Anr. v. State of U. P. 2004 (57) ALR 290, (Seven Judges'' judgment of this Court) and Hon''ble Apex Court judgment in Lal Kamlendra Pratap Singh v. State of U. P. and others 2009 (3) ADJ 322: 2009 (2) ACR 2063 .